[Federal Register Volume 69, Number 240 (Wednesday, December 15, 2004)]
[Rules and Regulations]
[Pages 75208-75216]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27423]



[[Page 75207]]

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Part V





Department of Transportation





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Research and Special Programs Administration



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49 CFR Parts 171, 172, 173 and 175



Hazardous Materials; Prohibition on the Transportation of Primary 
Lithium Batteries and Cells Aboard Passenger Aircraft; Final Rule

  Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / 
Rules and Regulations  

[[Page 75208]]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 171, 172, 173 and 175

[Docket No. RSPA-04-19886 (HM-224E]
RIN 2137-AE05


Hazardous Materials; Prohibition on the Transportation of Primary 
Lithium Batteries and Cells Aboard Passenger Aircraft

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Interim final rule.

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SUMMARY: To protect life and property, RSPA (we), working closely with 
the Federal Aviation Administration (FAA), is issuing an interim final 
rule imposing a limited prohibition on offering for transportation and 
transportation of primary (non-rechargeable) lithium batteries and 
cells as cargo aboard passenger-carrying aircraft and equipment 
containing or packed with large primary lithium batteries. This rule 
applies to both foreign and domestic passenger-carrying aircraft 
entering, leaving, or operating in the United States and to persons 
offering primary lithium batteries and cells for transportation as 
cargo on any passenger-carrying aircraft. This prohibition does not 
affect the carriage of lithium batteries or devices containing lithium 
batteries that are transported in a passenger's luggage for personal 
use. In addition, this rule does not apply to the shipment of equipment 
that contains or is packed with small primary lithium batteries or to 
the shipment of secondary (rechargeable) lithium batteries (e.g., 
lithium ion batteries). RSPA is also amending the Hazardous Materials 
Regulations to require that, when offered for transport as cargo, 
shipments of primary lithium batteries and cells that are excepted from 
classification as a Class 9 (miscellaneous) hazardous material must be 
marked to indicate that they are forbidden for transport aboard 
passenger-carrying aircraft. Because this interim final rule addresses 
an immediate public safety risk, it is impracticable and contrary to 
the public interest to precede it with a notice of proposed rulemaking 
and an opportunity for public comment. RSPA and FAA also plan on 
holding a public meeting on this rulemaking before the end of the 
comment period. The details of the public meeting, including time and 
location, will be set forth in a future Federal Register notice.

DATES: Effective Date: The effective date of these amendments is 
December 29, 2004.
    Comments: Comments must be received by February 14, 2005.

ADDRESSES: You may submit comments [identified by DOT DMS Docket Number 
RSPA-04-19886 (HM-224E)] by any of the following methods:
      Web Site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
     Fax: 202-493-2251.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, PL-401, 
Washington, DC 20590-0001.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: You must include the agency name (Research and 
Special Programs Administration and Docket number (RSPA-04-19886 (HM-
224E) or the Regulatory Identification Number (RIN) for this rulemaking 
at the beginning of your comments. You should submit two copies of your 
comments if you submit them by mail. If you wish to receive 
confirmation that RSPA received your comments, you must include a self-
addressed stamped postcard. Note that all comments received will be 
posted, without change, to http://dms.dot.gov including any personal 
information provided and will be available to internet users. Please 
see the Privacy Act section of this document.
    Docket: For access to the docket to read background documents and 
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: John A. Gale, Office of Hazardous 
Materials Standards, RSPA, Department of Transportation, 400 Seventh 
Street, SW., Washington, DC 20590-0001, Telephone (202) 366-8553.

SUPPLEMENTARY INFORMATION: This interim final rule prohibits primary 
lithium battery cargo shipments on passenger carrying aircraft because 
they are an immediate threat to the flying public. FAA and RSPA 
identified this category of cargo shipments by assessing recent lithium 
battery fires in air transportation and considering a recently released 
FAA technical report evaluating the flammability of primary lithium 
batteries and the effect of air carrier fire suppression systems on 
primary lithium battery fires. At this time we are not prohibiting the 
shipment of secondary (rechargeable) lithium batteries or those 
electronic devices (e.g., laptop computer, cells) that contain or are 
packed with small lithium batteries, and passengers may continue to 
bring personal electronic devices on-board either in carry-on or 
checked baggage. RSPA is continuing to evaluate the risks posed by 
rechargeable lithium batteries, as well as all lithium batteries on-
board aircraft, either separately or as part of equipment, and we seek 
comment on ways to mitigate these risks and the costs of doing so.

I. Background

    Federal hazardous materials transportation law (49 U.S.C. 5101 et 
seq.) directs the Secretary of Transportation to establish regulations 
for the safe and secure transportation of hazardous materials in 
commerce. Regulations prescribed in accordance with Federal hazardous 
materials transportation law govern safety aspects, including security, 
of the transportation of hazardous materials that the Secretary 
considers appropriate. In 49 CFR 1.53, the Secretary delegated 
authority to issue regulations for the safe and secure transportation 
of hazardous materials in commerce to the Research and Special Programs 
Administrator. The Administrator issues the Hazardous Materials 
Regulations (HMR; 49 CFR Parts 171 through 180) under that delegated 
authority. The authority for enforcement of the HMR is shared by RSPA, 
FAA, the United States Coast Guard, Federal Motor Carrier Safety 
Administration, and Federal Railroad Administration. FAA has primary 
enforcement authority concerning transportation and shipments of 
hazardous materials by air. 49 CFR 1.47(k).

II. Regulation of Lithium Batteries and Cells Under the HMR

    Battery manufacturers use lithium in batteries due to its favorable 
chemical properties. Lithium batteries are used to power both portable 
and non-portable products. The market for portable, battery-powered 
products is diverse and growing, encompassing a variety of electronic 
computer, communications, and entertainment products; a variety of 
cordless tools; and whole new classes of military and medical products. 
This diversity has resulted from a unique

[[Page 75209]]

synergy between the products themselves, the batteries they use, and 
the battery charger and power management systems that charge the 
batteries. Primary (non-rechargeable) lithium batteries are used in a 
variety of products, such as cameras, memory backup circuits, security 
devices, calculators, and watches. Secondary (rechargeable) lithium 
batteries are used in camcorders, cell phones, and other portable 
electronics.
    Under the HMR, lithium batteries and cells and equipment containing 
or packed with lithium batteries are regulated as Class 9, 
Miscellaneous Hazardous Materials. In accordance with Sec.  173.185(e) 
of the HMR, lithium batteries and cells must be tested in accordance 
with the UN Manual of Tests and Criteria; equipped with an effective 
means of preventing short circuits; packaged in Packing Group II 
performance level packagings; and identified on shipping papers and 
with package markings and labels. However, materials in Class 9 are not 
subject to the aircraft cargo compartment limits in Sec.  175.75; 
therefore, there is no limit on the number of lithium batteries and 
cells that may be loaded in an aircraft cargo compartment. Prior to 
1995, lithium batteries and cells that were not otherwise excepted from 
the HMR were forbidden for transportation aboard passenger carrying 
aircraft unless such transportation was approved by the Associate 
Administrator for Hazardous Materials Safety. See 49 CFR 173.185(a) 
(Oct. 1, 1994 ed.) and RSPA's Dec. 29, 1994 final rule in Docket No. 
HM-215A (59 FR 67390, 67509).
    Section 173.185 provides exceptions from the packaging and hazard 
communication requirements in the HMR for smaller primary lithium 
batteries \1\ and cells. When the lithium content of the battery or 
cell does not exceed certain limits, the batteries and cells must be 
packaged in strong outer packagings and in a manner to protect against 
short circuit; however, such shipments are excepted from all other HMR 
requirements.
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    \1\ ``Smaller'' primary lithium battery is a battery that 
effectively has an aggregate lithium content of less 25 grans when 
fully charged.
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III. Safety Concerns Associated with the Transport of Lithium Batteries 
and Cells by Aircraft

A. Incident at Los Angeles International Airport and NTSB 
Recommendations

    On April 28, 1999, at Los Angeles International Airport (LAX) a 
shipment of two pallets of primary lithium batteries that were excepted 
from the HMR caught fire and burned after being off-loaded from a 
passenger-carrying Northwest Airlines flight from Osaka, Japan. The 
packages and batteries were damaged while the pallets were being 
handled by cargo handling personnel. The damage resulting from the 
cargo transfer is believed to have initiated a fire. The fire was 
initially fought by Northwest employees with portable fire 
extinguishers and a fire hose. Each time the fire appeared to be 
extinguished, it flared up again. The two pallets involved in the fire 
contained 120,000 primary lithium batteries. Under the exceptions in 
Sec.  173.185(b), these batteries were not required to be tested in 
accordance with UN Manual of Tests and Criteria; the shipment was 
excepted from hazard communication requirements (i.e., marking, 
labeling and shipping papers); and the packages were not required to 
meet the packaging design and performance testing requirements.
    As a result of this incident, the National Transportation Safety 
Board (NTSB) issued five safety recommendations (a copy of the NTSB 
letter is in the public docket) to RSPA concerning the transportation 
of lithium batteries, as follows:

    Recommendation A-99-80. With the Federal Aviation 
Administration, evaluate the fire hazards posed by lithium batteries 
in an air transportation environment and require that appropriate 
safety measures be taken to protect airplane and occupants. The 
evaluation should consider the testing requirements for lithium 
batteries in the United Nations' Transport of Dangerous Goods Manual 
of Tests and Criteria, the involvement of packages containing large 
quantities of tightly packed batteries in a cargo compartment fire, 
and the possible exposure of batteries to rough handling in an air 
transportation environment, including being crushed or abraded open.
    Recommendation A-99-81. Pending completion of an evaluation of 
the fire hazards posed by lithium batteries in an air transportation 
environment, prohibit the transportation of lithium batteries on 
passenger-carrying aircraft.
    Recommendation A-99-82. Require that packages containing lithium 
batteries be identified as hazardous materials, including 
appropriate marking and labeling of the packages and proper 
identification in shipping documents, when transported on aircraft.
    Recommendation A-99-83. Pending completion of an evaluation of 
the fire hazards posed by lithium batteries in an air transportation 
environment, notify the International Civil Aviation Organization's 
Dangerous Goods Panel about the circumstances of the fire in the 
Northwest Airlines cargo facility at Los Angeles International 
Airport on April 28, 1999. Also pending completion of an evaluation 
of the fire hazards posed by lithium batteries in an air 
transportation environment, initiate action through the Dangerous 
Goods Panel to revise the Technical Instructions for the Safe 
Transportation of Dangerous Goods by Air to prohibit the 
transportation of lithium batteries on passenger-carrying aircraft.
    Recommendation A-99-84. Initiate action through the Dangerous 
Goods Panel to revise the Technical Instructions for the Safe 
Transportation of Dangerous Goods by Air to require that packages 
containing lithium batteries be identified as hazardous materials 
when transported on aircraft.

    In a letter dated March 29, 2000, responding to the NTSB 
recommendations, we informed NTSB that, in coordination with FAA, we 
would initiate a study to assess the hazards associated with the 
transportation of lithium batteries and cells on board aircraft and to 
recommend enhanced safety measures if found to be necessary. We also 
sought additional information from lithium battery manufacturers and 
Federal agencies with extensive experience with testing and the use of 
lithium batteries and cells. Finally, as we informed NTSB, we planned 
to conduct experimental evaluations necessary to obtain information not 
available from other sources for both primary and rechargeable lithium 
batteries and cells.
    In our response to NTSB, we also stated we could not at that time 
justify an immediate prohibition on the transportation of lithium 
batteries on passenger-carrying aircraft, but that we would initiate 
alternative interim actions to address the risk lithium batteries 
present in transportation. These alternative actions included 
developing and distributing information aimed at shippers and airline 
personnel on the potential hazards of lithium batteries and amendments 
to both the international and domestic regulations. In addition, we 
committed to initiate additional rulemaking actions as necessary, based 
on the findings of our evaluation, to address the hazards of lithium 
batteries in transportation.
    On July 7, 1999, RSPA published a public advisory to remind persons 
that batteries and electrical devices that contain batteries are 
forbidden for transport unless properly packaged to prevent the 
likelihood of creating sparks or generating dangerous heat (64 FR 
36743). The FAA also published advisories to the airline industry on 
July 2, 1999, and again on May 23, 2002.
    On April 2, 2002, RSPA published a notice of proposed rulemaking 
(NPRM; 67 FR 15510) to amend the HMR to: (1) Change the test methods 
for lithium batteries and cells; (2) revise the exceptions for small 
batteries and cells (e.g., those of 1 gram or less of lithium content) 
including adding a requirement that all such batteries and cells be 
subject to new marking and paper work

[[Page 75210]]

requirements and to the test methods for lithium batteries and cells; 
(3) eliminate the exception for larger batteries and cells (e.g., cells 
up to 5 grams of lithium content and batteries up to 25 grams of 
lithium content); and (4) provide an exception for aircraft passengers 
and crew. The proposals in the NPRM are consistent with amendments that 
have already been adopted into the UN Recommendations on the Transport 
of Dangerous Goods and the International Civil Aviation Organization's 
Technical Instructions for the Safe Transport of Dangerous Goods by 
Air.

B. FAA Technical Report on Primary Lithium Batteries

    As part of DOT's re-evaluation of the hazards posed by lithium 
batteries in air transportation, FAA initiated a series of tests to 
assess the flammability characteristics of primary lithium batteries 
and published a technical report in June 2004 (DOT/FAA/AR/-04/26). This 
report, which can be found in the docket for this rulemaking, concluded 
that the presence of a shipment of primary lithium batteries can 
significantly increase the severity of an in-flight cargo compartment 
fire. More importantly, the report concluded that primary lithium 
batteries pose a unique threat in the cargo compartment of an aircraft 
because primary lithium fires cannot be suppressed by means of Halon 
1301, the only FAA certified fire suppressant system permitted for use 
in cargo compartments of a passenger-carrying aircraft operating in the 
United States.
    The FAA report describes tests conducted by the FAA Fire Safety 
Branch to assess the potential danger posed to passenger and cargo 
aircraft by fires involving shipments of bulk-packed primary lithium 
batteries. The report notes that primary lithium batteries shipped as 
cargo are packed in bulk-corrugated cardboard containers, stacked on 
pallets, and shipped in the cargo holds of passenger and cargo 
aircraft. More than 30,000 batteries may be shipped on a single pallet. 
The packaging permits close contact between individual batteries in 
each row with only thin cardboard separating the rows.
    The report concludes that once a primary lithium battery begins to 
burn, the outer plastic coating of the battery easily melts and 
ignites, contributing to the fire intensity. This increased intensity 
helps raise the temperature of the surrounding batteries to the self-
ignition temperature of lithium, 352 [deg]F. Once the 
lithium in a single battery begins to burn, it releases enough energy 
to ignite adjacent batteries. This propagation continues until all 
batteries have been consumed.
    Once ignited, primary lithium battery fires are difficult to 
combat. This is because lithium is highly reactive and has a relatively 
low self-ignition temperature. Thus, while Halon 1301 is effective in 
suppressing a fire associated with the surrounding packing material, it 
is not effective against the burning lithium batteries. Likewise, Halon 
1301 may successfully suppress a fire that starts in the cargo 
compartment that is unrelated to lithium batteries. However, the air 
temperature in a cargo compartment may still be above the self-ignition 
temperature of lithium batteries. Because of this, lithium batteries 
that are not involved in the initial fire may still ignite and 
propagate.
    The report concludes that the ignition of a primary lithium battery 
releases burning electrolytes and a molten lithium spray. The cargo 
liner material used to insulate cargo may be vulnerable to perforation 
by molten lithium depending on its thickness. If perforated, the cargo 
liner cannot prevent the Halon 1301 fire suppressant agent from leaking 
out of the compartment, reducing the agent concentration within the 
cargo compartment and, thus, the effectiveness of the agent. 
Additionally, holes in the cargo liner may allow flames to spread 
outside of the cargo compartment, spreading the fire to other portions 
of the aircraft.
    Similarly, the report concludes that the ignition of primary 
lithium batteries create a pressure pulse that can raise the air 
pressure within the cargo compartment. Cargo compartments are only 
designed to withstand approximately a 1-psi pressure differential. 
Greater pressure differentials may compromise the integrity of the 
compartment by activating pressure relief panels. The study found that 
ignition of only a few batteries was sufficient to increase the air 
pressure by more than 1-psi in an airtight 10 meter cubed pressure 
vessel. This increase in pressure has the same effect as perforations 
in the cargo liner, allowing the Halon 1301 fire suppressant to leak 
out, reducing its effectiveness, and allowing the fire to spread beyond 
the cargo compartment.

C. Additional Incidents Continue to Occur

    Since 1999, there have been several incidents involving lithium 
batteries in air transportation. At least four of those incidents 
involved primary lithium battery fires; one incident required medical 
treatment for two workers. All of these fires were discovered either 
just before or just after lithium batteries were transported on an 
aircraft in a cargo compartment. One of the more significant incidents 
is described below.
    In April of 2002, airport personnel at the Indianapolis 
International Airport discovered a fire involving lithium batteries 
that had just arrived on a flight from Morgan Hill, California. The 
batteries had short-circuited inside their packaging. Airport personnel 
noticed the smoke coming from the container and isolated and 
extinguished the fire before it spread. Had the fire ignited sooner or 
had the flight been delayed by a short time, the fire could have spread 
in the cargo area of the aircraft while in the air. Although this 
incident occurred aboard a cargo-only aircraft, it just as easily could 
have occurred on a passenger-carrying flight.
    The number of lithium batteries and cells being transported via 
aircraft appears to be steadily increasing, as is the lithium content 
of individual batteries and cells. Import statistics also show an 
increased demand for lithium batteries. Since 2001, primary lithium 
battery imports have increased more than 20%, from approximately 151 
million units in 2001 to approximately 182 million units in 2003. See 
U.S. International Trade Commission DataWeb Import Statistics for 
Primary Cells and Primary Batteries, Lithium, Category 850650. With the 
growing consumer demand for portable powered devices that have 
increasing capacity to operate for long periods, more and more 
batteries that have very large reserves of electrical energy are being 
shipped. If not properly protected from short circuiting or prevented 
from accidental activation, these batteries can generate a large 
quantity of sparks and/or heat for an extended period.

D. Petition from the Air Line Pilots Association

    On September 29, 2004 the Air Line Pilots Association, 
International (ALPA) petitioned RSPA to develop packaging standards for 
lithium primary batteries similar to those in place for other 
commodities that, in the event of a fire, including a suppressed cargo 
fire, would result in the loss of an aircraft. ALPA suggests that the 
packaging should not only be sufficient to protect the batteries from 
damage and short-circuiting, but also should be adequate to protect the 
batteries from self-ignition if exposed to the heat from a suppressed 
or unsuppressed cargo fire. ALPA further suggests that the severity of 
the safety problem requires immediate attention and that, if the 
packaging criteria cannot be met, bulk shipments

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of lithium batteries should be prohibited on both passenger-carrying 
and cargo-only aircraft. ALPA also requested that DOT perform 
additional testing of lithium ion batteries and lithium batteries 
contained in equipment.
    In its petition, ALPA references the recent RSPA rulemaking 
published under Docket HM-224B on May 6, 2004 (69 FR 25469), which 
proposed a requirement for oxygen cylinders to be overpacked in a 
packaging that would allow the cylinder to withstand a temperature of 
400 [deg]F for 3 hours. ALPA states that current packaging 
standards for lithium batteries provide no such protection against a 
suppressed cargo fire.

IV. Interim Final Rule

    The incident reports and test data discussed above indicate that 
primary lithium batteries and cells shipped as cargo on passenger-
carrying aircraft pose an immediate risk to the traveling public. This 
information shows that a primary lithium battery that is involved in a 
fire in a passenger aircraft cargo compartment could overcome the 
safety features of the cargo compartment; that if primary lithium 
batteries are not properly packaged or handled, they are capable of 
initiating a fire that could have catastrophic consequences. Therefore, 
in this interim final rule, RSPA is prohibiting the transportation as 
cargo of primary (non-rechargeable) lithium batteries and cells on 
passenger-carrying flights. We are implementing this restriction by 
reference to new Special Provisions A100, A101, and A102 in the hazmat 
table for the lithium battery entries. The current package quantity 
limitations for secondary lithium batteries have been moved unchanged 
to new Special Provisions A103 and A104. The action is this interim 
final rule are consistent with the policies of several airlines (e.g., 
Northwest Airlines and KLM) who have already prohibited the transport 
of lithium batteries aboard their aircraft We are also prohibiting the 
transportation of equipment containing or packed with large primary 
lithium batteries as cargo (i.e. batteries greater than 25 grams) on 
passenger-carrying aircraft. These prohibitions apply to both domestic 
flights and international flights.

A. Cargo Aircraft

    These prohibitions do not apply to shipments of primary lithium 
batteries and cells on a cargo-only aircraft. After careful 
consideration of past experiences with hazardous materials, recent 
incidents with lithium batteries, and NTSB safety recommendations, RSPA 
and FAA agree that the greatest risk to public safety is on passenger-
carrying operations. While it is certainly possible that an incident 
involving a primary lithium battery may occur on a cargo-only aircraft, 
the risk to public safety is much lower.
    Generally speaking, the characteristics of all-cargo aircraft 
provide options to pilots that would allow them to stop airflow to 
cargo compartments while the aircraft remains at a high altitude. Such 
action, especially at high altitude, would reduce the amount of oxygen 
available to a fire. Stopping or reducing the amount of oxygen to a 
compartment would help mitigate a fire. On a passenger aircraft, it 
would be more difficult to isolate airflow to a cargo compartment 
without also isolating air flow to the passenger compartment. The FAA 
confirmed that at least two major all-cargo air carriers already advise 
pilots to use these types of procedures to help respond to a fire.

B. Passengers Carrying Batteries in Carry-on or Checked Baggage

    This interim final rule does not prohibit a passenger from 
transporting devices containing lithium batteries for personal use 
(such as laptop computers, cell phones, cameras, etc.) in carry-on or 
checked baggage nor does it restrict a passenger from transporting 
spare lithium batteries for personal use in carry-on or checked 
baggage.
    Under this interim final rule, consumer electronics or medical 
devices containing a lithium battery, together with spare batteries for 
the device, are also permitted in checked baggage because it is not 
clear at this time to what extent the surrounding piece of equipment 
provides protection for the battery and prevents propagation. For each 
installed or spare cell or battery, the lithium content of the anode of 
each cell, when fully charged, may not exceed five grams, and the 
lithium content of the anodes of each battery, when fully charged, may 
not exceed 25 grams.
    It is RSPA's belief that this interim final rule will have little 
or no effect on those personal electronic devices that passengers 
currently carry aboard passenger-carrying aircraft. RSPA and the FAA 
may consider this issue and others for future rulemaking action.

C. Batteries Shipped in or with Equipment

    The prohibition in this interim final rule does not apply to the 
transportation as cargo on passenger aircraft of small primary lithium 
batteries that are shipped with or installed in equipment for which 
they are intended to provide power. The risk associated with shipment 
of primary lithium batteries in or with equipment is currently unclear. 
Studies conducted by the FAA and other government agencies focused only 
on shipments of primary lithium batteries, not on batteries contained 
in equipment. RSPA and the FAA will continue to study small lithium 
batteries shipped with equipment and will initiate additional actions 
as necessary.
    Those primary lithium batteries or cells we are continuing to allow 
to be transported as cargo aboard passenger-carrying aircraft when 
packed with or in equipment must: (1) comply with the requirements and 
limitations of Sec.  173.185(b)(1), (b)(2), (b)(3), (b)(4) and (b)(6) 
or Sec.  173.185(c)(1), (c)(2), (c)(3) and (c)(5); (2) the battery or 
cell or equipment containing the battery or cell, as appropriate, must 
be packed in strong packagings; (3) the package contains no more than 
the number of primary lithium batteries or cells necessary to power the 
intended piece of equipment; and (4) the total net weight of the 
primary lithium batteries in the package does not exceed 5 kg. Further, 
these types of lithium batteries are only allowed to be transported 
aboard passenger-carrying aircraft when packed with the piece of 
equipment for which they are intended to provide power.
    The provisions in Sec.  173.185(b) and Sec.  173.185(c) deal, in 
part, with the size of the lithium battery or cell and require that the 
cell or battery be hermetically sealed and that the batteries and cells 
be packed to prevent short circuiting. Concerning size limitations, 
Sec.  173.185(c)(1) restricts the lithium content of the anode of each 
cell, when fully charged, to not more than five grams and the aggregate 
lithium content of the anodes of each battery, when fully charged, to 
not more than 25 grams.

D. Secondary Lithium (Rechargeable/Lithium Ion) Batteries and Cells

    FAA and RSPA have similar concerns with lithium (rechargeable/
lithium ion) batteries in that they appear to have similar self-
ignition characteristics as primary lithium cells and batteries when 
subjected to thermal and physical abuse conditions. However, the risks 
associated with the shipment of secondary (rechargeable/lithium ion) 
lithium batteries, particularly with respect to their ability to burn 
in an atmosphere containing Halon, are currently unclear. Studies 
conducted by the FAA focused only on shipments of primary lithium 
batteries, not secondary (rechargeable) lithium batteries. RSPA and the 
FAA will continue to study the

[[Page 75212]]

hazards associated with the transportation of secondary lithium 
batteries and we will initiate additional actions as necessary.

E. Marking of Packages

    As noted previously, Sec.  173.185 provides exceptions from the 
packaging and hazard communication requirements in the HMR for smaller 
lithium batteries and cells. When the lithium content of the battery or 
cell does not exceed certain limits, the batteries and cells must be 
packaged in strong outer packagings and in a manner to protect against 
short circuit; however, such shipments are excepted from all other HMR 
requirements. Without an appropriate marking, carriers will be unaware 
of the presence of primary lithium batteries and cells in these types 
of packagings and may inadvertently transport primary lithium batteries 
and cells aboard passenger-carrying aircraft. Therefore, in this 
interim final rule, we are revising these exceptions to require that 
excepted packages of primary lithium batteries and cells, when 
transported by highway, rail, vessel and cargo aircraft, be marked 
``Primary Lithium batteries-Forbidden for transport aboard passenger 
aircraft''.

F. Exemptions and Approvals

    RSPA has issued a number of Competent Authority Approvals and 
exemptions that authorize the transportation of certain lithium 
batteries on passenger-carrying aircraft. Consistent with the 
prohibitions imposed by this interim final rule, any existing approval 
or exemption that authorizes the shipment of primary lithium batteries 
on passenger-carrying aircraft, may no longer make use of that 
provision. An approval or exemption authorizing the shipment of lithium 
batteries on cargo-only aircraft, motor vehicles, rail cars or vessels 
may continue to be used.

G. Prohibitions Apply to International Flights

    Annex 18 to the Convention on International Civil Aviation (Annex 
18) addresses the safe transport of dangerous goods by air. The 
International Civil Aviation Organization (ICAO) publishes Technical 
Instructions for the Safe Transport of Dangerous Goods by Air. These 
Technical Instructions are recognized by contracting states as a set of 
international shipping standards. In the United States, 49 CFR 171.11 
establishes limits on the use of the Technical Instructions by shippers 
and air operators. Section 2.5.1 of Annex 18 addresses state variations 
and indicates, ``Where a Contracting State adopts different provisions 
from those specified in the Technical Instructions, it shall notify 
ICAO promptly of each State variation for publication in the Technical 
Instructions.'' United States Variation number 1 is published in the 
Technical Instructions and indicates, in part, ``Transport of Dangerous 
Goods by air must be in accordance with United States'' Regulations (49 
CFR 171-180) or the Technical Instructions as limited by 49 CFR 
171.11.'' The new limits described, in part, by Sec.  171.11 (d) (18) 
in this Interim Final Rule establish that the authority outlined in the 
Technical Instructions may not be used to transport the affected 
lithium batteries and cells by passenger aircraft into, out of, or 
within the United States.

V. Justification for Interim Final Rule

    We are issuing this interim final rule without providing an 
opportunity for prior public notice and comment as is normally required 
by the Administrative Procedure Act (APA). See 5 U.S.C. 553. The APA 
authorizes agencies to dispense with certain notice and comment 
procedures if the agency finds good cause that notice and public 
procedure thereon are impracticable, unnecessary, or contrary to the 
public interest. See 5 U.S.C. 553(b)(3)(B). ``Good cause'' exists in 
situations when notice unavoidably prevents the due and required 
execution of agency functions or when an agency finds that due and 
timely execution of its functions are impeded by the notice otherwise 
required by the APA. See Administrative Procedure Act: Legislative 
History, S. Doc. No. 248 79-200 (1946); United States Department of 
Justice, Attorney General's Manual on the Administrative Procedure Act 
at 30-31 (1947). The Attorney General's Manual on the Administrative 
Procedure Act gives an example of an ``impracticable'' good cause 
situation where air safety rules should be amended without delay if the 
FAA determines that the safety of the traveling public is at stake. See 
United States Department of Justice, Attorney General's Manual on the 
Administrative Procedure Act at 30-31 (1947).
    This action meets the good cause exception because of recent 
evidence that primary lithium batteries and cells shipped as cargo on 
passenger-carrying aircraft pose an immediate risk to the traveling 
public. This action is further supported by the fact that there has 
been several incidents involving lithium batteries in air 
transportation since 1999, and there have been several serious fires in 
the past five years, where if circumstances had been slightly 
different, it is very likely that there would be a significant risk to 
the safety of the flying public with potentially disastrous 
consequences. In these situations, if the primary lithium battery cargo 
had been on a passenger carrying aircraft and the fire occurred a short 
time later or had not been noticed, there could have been significant 
loss of life.
    The Regulatory Policies and Procedures of DOT (44 FR 110034; 
February 26, 1979) provide that, to the maximum extent possible, DOT 
operating administrations should provide an opportunity for public 
comment on regulations issued without prior notice. Accordingly, we 
encourage persons to participate in this rulemaking by submitting 
comments containing relevant information, data, or views. We also 
invite comments by February 14, 2005 concerning the costs and benefits 
that may result from the provisions of this interim final rule and 
particularly the costs that may be incurred by small businesses. We 
also plan to hold a public meeting before the end of the comment period 
to hear comments and concerns related to the provisions of this IFR. We 
expect that the information provided at a public meeting will better 
enable us to address those concerns and, if necessary, respond rapidly 
to the need for any modifications to this IFR. We will consider all 
comments received on or before the closing date for comments. We will 
consider late-filed comments to the extent practicable. This interim 
final rule may be amended based on comments received.

VI. Justification for Effective Date Less than 30 Days

    This interim final rule is effective fourteen days after 
publication in the Federal Register. The APA requires agencies to delay 
the effective date of regulations for 30 days after publication, unless 
the agency finds good cause to make the regulations effective sooner. 
See 5 U.S.C. 553(d). This interim final rule meets the good cause 
exception in this instance because of the potential catastrophic 
consequences should a fire occur in the cargo area of a passenger-
carrying aircraft that involves primary lithium batteries. As discussed 
above, warning signs are clearly evident with several recent close 
calls, that primary lithium batteries and cells are capable of causing 
a catastrophic incident. It is imperative that the Department act now 
to prohibit the shipment of primary lithium batteries and cells on 
passenger-carrying aircraft. Because some shipments of batteries and 
cells are already en-route and it may be impossible to immediately 
identify,

[[Page 75213]]

remove, re-mark and re-route cargo currently aboard passenger-carrying 
aircraft, we are delaying the effective date of this interim final rule 
for fourteen days, so that primary lithium battery cargo shipments can 
be identified, properly marked and re-routed. This rule does not apply 
to those shipments that originated prior to the effective date. 
Shipments that originated prior to the effective date of the rule, but 
which will not reach their destination until after the effective date 
of this rule are not required to be re-routed to avoid passenger-
carrying aircraft.

VII. Rulemaking Analysis and Notices

A. Statutory/Legal Authority for This Rulemaking

    This interim final rule is published under authority of Federal 
hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 
5101 et seq.) and 49 U.S.C. 44701. Section 5103(b) of Federal hamat law 
authorizes the Secretary of Transportation to prescribe regulations for 
the safe transportation, including security, of hazardous material in 
intrastate, interstate, and foreign commerce. Title 49 United States 
Code Sec.  44701 authorizes the Administrator of the Federal Aviation 
Administration to promote safe flight of civil aircraft in air commerce 
by prescribing regulations and minimum standards for practices, 
methods, and procedure the Administrator finds necessary for safety in 
air commerce and national security. Under 49 U.S.C. 40113, the 
Secretary of Transportation has the same authority to regulate the 
transportation of hazardous material by air, in carrying out Sec.  
44701, that he has under 49 U.S.C. 5103.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    The Department has determined that the transportation of primary 
lithium batteries and cells on-board passenger-carrying aircraft 
presents an immediate safety threat. Therefore, this rule is issued to 
address an emergency situation within the meaning of Section 6(a)(3)(D) 
of Executive Order 12866. Under Section 6(a)(3)(D), in emergency 
situations, an agency must notify OMB as soon as possible and, to the 
extent practicable, comply with subsections (a)(3)(B) and (C) of 
Section 6 of E.O. 12866. The Department has notified and consulted with 
OIRA/OMB on this interim final rule. We are preparing an assessment of 
potential costs and benefits resulting from this regulatory action. 
RSPA welcomes public comments on potential costs and benefits of this 
regulatory action.
    Under the Department of Transportation's Regulatory Policies and 
Procedures (44 FR 11034), this rule is considered to be an emergency 
regulation. The Department has determined that an immediate safety 
threat exists in the transportation of primary lithium batteries and 
cells on board passenger aircraft and, therefore, this rule is 
considered to be an emergency regulation. Because of the need to move 
quickly to remove primary lithium batteries and cells from 
transportation on passenger aircraft, it would be impractical, 
unnecessary and contrary to the public interest to follow the usual 
procedures under the DOT order.
    RSPA and FAA conducted a preliminary analysis of the impact of this 
interim final rule on current shipments of lithium batteries into and 
within the United States. Although this rule will clearly require some 
re-routing of lithium battery shipments, indications are that the 
overall impact will be limited due to the capacity of all-cargo flights 
into and within the United States. In addition, lithium batteries may 
also be shipped by other modes of transport.
    RSPA and the FAA estimate that the economic impact of this Interim 
Final Rule to be less than $2 million for the first year, and less than 
that amount thereafter. This estimate is based on FAA conversations 
with industry, available primary lithium battery industry data, and air 
cargo industry data.
    We were unable to identify a source that provides a definitive 
number of primary lithium batteries or the value of such batteries for 
the U.S. domestic market. Therefore, we estimated the domestic annual 
primary lithium battery market to be valued at $540 million. This 
estimate is based on doubling Department of Commerce import and export 
statistics for primary lithium batteries. Commerce reported that 244 
million batteries valued at approximately $270 million are either 
imported or exported annually. Given that Commerce reports many more 
primary lithium batteries are imported, rather than exported, it is 
likely the domestic market is smaller than the international market and 
therefore, the estimate of $540 million is probably high.
    Based on conversations with various lithium battery industry 
members, the FAA estimates that domestically, approximately 20% of 
lithium batteries are shipped via air and 80% are shipped via other 
modes of transportation. Assuming 20% of the primary lithium battery 
market (that is shipped by air) is affected by this rule, the annual 
dollar value of batteries potentially affected by this rule is 
approximately $108 million (20% of $540 million).
    According to data compiled by the FAA, 25% of all air cargo is 
shipped on passenger aircraft, with 75% sent on all cargo aircraft. 
Therefore, assuming 25% of the primary lithium batteries sent by air 
are affected by this rule (75% sent by other modes are not affected), 
the annual dollar value of primary lithium batteries affected by this 
rule is approximately $27 million (25% of $108 million).
    The FAA also assumes that only the shipping costs of a battery is 
affected by this rule, not the total value of a battery. Based on 
conversations with industry, shipping costs for primary lithium 
batteries is approximately 3% of total cost. Assuming a 3% shipping 
cost affected by this rule, the annual dollar value is reduced to 
approximately $810,000 (3% of $27 million).
    The FAA estimates this cost to be high because preliminary 
discussions with industry indicate that some industry members send 
primary lithium batteries by cargo only aircraft. In addition, 
discussions with some airlines that have a separate cargo only fleet, 
indicate that shipping costs are the same for items shipped on a 
passenger carrying aircraft and a cargo only aircraft.
    The FAA also assumes some cost for the marking requirement in this 
rule. While some cost is expected, this may be diminished because not 
every package of primary lithium batteries will require a marking, 
instead one label can be used for a package that contains a number of 
lithium batteries. In addition, this rule does not apply to primary 
lithium batteries that are already in the stream of commerce at the 
time of this rule, so shippers will not have to locate, label, and re-
route shipments.
    For primary lithium batteries imported to the U.S., the Official 
Airline Guide reports over 3,000 all-cargo aircraft flights entering 
the United States each month. A comparison of U.S. primary lithium 
battery trading partners with the schedule of all-cargo aircraft 
flights indicates an abundance of all-cargo capacity. For example, 
approximately 56 percent of all primary lithium battery imports are 
shipped from Japan, and there are over 300 scheduled all-cargo flights 
from Japan to the United States each month. Approximately 12 percent of 
all primary lithium battery imports are shipped from China, and there 
are over 152 scheduled all-cargo flights from China to the United 
States each month. In

[[Page 75214]]

addition, all-cargo flights from the United States serve major airport 
hubs world-wide from which cargo such as primary lithium batteries 
could be transshipped to their ultimate destination. Most importantly, 
discussions with industry indicate that the current air cargo 
infrastructure provides all cargo service to virtually every location 
in the world. Because certain items, including certain hazardous 
material, are prohibited from passenger aircraft, all cargo service 
already provides cargo only service to every location in the world. 
This is accomplished in part by ``feeder'' flights, contracted to local 
operators to reach remote locations.
    While various lithium batteries are not affected by this interim 
final rule, such as lithium ion batteries, lithium batteries shipped in 
or with electronic devices, or lithium batteries carried by passengers, 
interested persons should be aware that the Department may initiate 
additional regulatory actions in the future to address these topics and 
others in all modes of transport.

C. Executive Order 13132

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). This 
rule preempts State, local, and Indian tribe requirements but does not 
impose any regulation that has substantial direct effects on the 
States, the relationship between the national government and the 
States, or the distribution of power and responsibilities among the 
various levels of government. Therefore, the consultation and funding 
requirements of Executive Order 13132 do not apply.
    The Federal hazardous materials transportation law, 49 U.S.C. 5101-
27, contains express preemption provisions (49 U.S.C. 5125) that 
preempt inconsistent State, local, and Indian tribe requirements, 
including requirements on the following subjects:
    (1) The designation, description, and classification of hazardous 
materials;
    (2) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous materials;
    (3) The preparation, execution, and use of shipping documents 
related to hazardous materials and requirements related to the number, 
contents, and placement of those documents;
    (4) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material; or
    (5) The design, manufacture, fabrication, marking, maintenance, 
recondition, repair, or testing of a packaging or container 
represented, marked, certified, or sold as qualified for use in 
transporting hazardous material.
    This rule addresses subject items (1), and (2) described above and, 
accordingly, State, local, and Indian tribe requirements on these 
subjects that do not meet the ``substantively the same'' standard will 
be preempted.
    Federal hazardous materials transportation law provides at Sec.  
5125(b)(2) that, if DOT issues a regulation concerning any of the 
covered subjects, DOT must determine and publish in the Federal 
Register the effective date of Federal preemption. The effective date 
may not be earlier than the 90th day following the date of issuance of 
a final rule and not later than two years after the date of issuance. 
The effective date of Federal preemption is 90 days from publication of 
this interim final rule in this matter in the Federal Register.

D. Executive Order 13175

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this final rule 
does not have tribal implications and does not impose direct compliance 
costs, the funding and consultation requirements of Executive Order 
13175 do not apply.

E. Regulatory Flexibility Act and Executive Order 13272

    Section 603 of the Regulatory Flexibility Act (RFA) requires an 
agency to prepare an initial regulatory flexibility analysis describing 
impacts on small entities whenever an agency is required by 5 U.S.C. 
Sec.  553 to publish a general notice of proposed rulemaking for any 
proposed rule. Similarly, section 604 of the RFA requires an agency to 
prepare a final regulatory flexibility analysis when an agency issues a 
final rule under 5 U.S.C. 553 after being required to publish a general 
notice of proposed rulemaking. Because we have determined that there is 
an immediate safety threat and that primary lithium batteries and cells 
must be quickly removed from transportation on passenger aircraft, 
prior notice and comment would be contrary to the public interest. As 
prior notice and comment under 5 U.S.C. 553 are not required to be 
provided in this situation, the analyses in 5 U.S.C. sections 603 and 
604 are not required.

F. Unfunded Mandates Reform Act of 1995

    This rule does not impose unfunded mandates under the Unfunded 
Mandates Reform Act of 1995. It does not result in costs of $120.7 
million or more, in the aggregate, to any of the following: State, 
local, or Native American tribal governments, or the private sector.

G. Paperwork Reduction Act

    There are no new information collection requirements in this final 
rule.

H. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN number contained in the heading 
of this document may be used to cross-reference this action with the 
Unified Agenda.

I. Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA), as amended 
(42 U.S.C. 4321-4347), requires Federal agencies to consider the 
consequences of major federal actions and prepare a detailed statement 
on actions significantly affecting the quality of the human 
environment. This interim final rule prohibits primary lithium 
batteries and cells as cargo aboard passenger-carrying aircraft, 
thereby reducing the risk of fire aboard passenger-carrying aircraft 
and any resulting environmental damage. We find that there are no 
significant environmental impacts associated with this interim final 
rule.

J. Privacy Act

    Anyone is able to search the electronic form for all comments 
received into any of our dockets by the name of the individual 
submitting the comments (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
``http://dms.dot.gov''.

List of Subjects

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste, 
Imports, Incorporation by reference, Reporting and recordkeeping 
requirements.

49 CFR Part 172

    Education, Hazardous materials transportation, Hazardous waste, 
Labeling, Markings, Packaging and

[[Page 75215]]

containers, Reporting and recordkeeping requirements.

49 CFR Part 173

    Hazardous materials transportation, Packaging and containers, 
Radioactive materials, Reporting and recordkeeping requirements, 
Uranium.

49 CFR Part 175

    Air carriers, Hazardous materials transportation, Radioactive 
materials, Reporting and recordkeeping requirements.

0
In consideration of the foregoing, 49 CFR Chapter I is amended as 
follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
1. The authority citation for part 171 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127, 44701; 49 1.45 and CFR 1.53; Pub 
L. 101-410 section 4 (28 U.S.C. 2461); Pub. L. 104-134, section 
31001.

0
2. In Sec.  171.11, paragraph (d)(18) is added to read as follows:


Sec.  171.11  Use of ICAO Technical Instructions.

* * * * *
    (d) * * *
    (18) Primary lithium batteries and cells are forbidden for 
transportation aboard passenger-carrying aircraft. Equipment containing 
or packed with primary lithium batteries or cells are forbidden from 
transport aboard passenger-carrying aircraft except as provided in 
Sec.  172.102, Special Provision A101 or A103, of this subchapter. 
Except for primary lithium batteries and cells that are contained in or 
packed with equipment, packagings containing primary lithium batteries 
and cells that meet the exceptions in Sec.  173.185(b) and (c) of this 
subchapter must be marked ``PRIMARY LITHIUM BATTERIES--FORBIDDEN FOR 
TRANSPORT ABOARD PASSENGER AIRCRAFT'' and may be transported aboard 
cargo-only aircraft.

0
3. In Sec.  171.12, paragraph (b)(22) is added to read as follows:


Sec.  171.12  Import and export shipment.

* * * * *
    (b) * * *
    (22) Except for primary lithium batteries and cells, packagings 
containing primary lithium batteries and cells that meet the exceptions 
in Sec.  173.185(b) and (c) of this subchapter must be marked ``PRIMARY 
LITHIUM BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT''.
* * * * *

0
4. In Sec.  171.12a, paragraph (b)(12) is added to read as follows:


Sec.  171.12a  Canadian shipments and packagings.

* * * * *
    (b) * * *
    (12) Except for primary lithium batteries and cells, packagings 
containing primary lithium batteries and cells that meet the exceptions 
in Sec.  173.185(b) and (c) of this subchapter must be marked ``PRIMARY 
LITHIUM BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT''.
* * * * *

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS 
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND 
TRAINING REQUIREMENTS

0
5. The authority citation for part 172 is revised to read as follows:

    Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.53.


Sec.  172.101  [Amended]

0
6. In Sec.  172.101, in the Hazardous Materials Table, the following 
changes are made:
    a. For the entry ``Lithium batteries, contained in equipment'', in 
Column (7), Special Provisions ``A102, A104'' are added and Column (9A) 
is revised to read ``See A102, A104''.
    b. For the entry ``Lithium batteries packed with equipment'', in 
Column (7), Special Provisions ``A101, A103'' are added and Column (9A) 
is revised to read ``See A101, A103''.
    c. For the entry ``Lithium battery'', in Column 7, Special 
Provision ``A100'' is added and Column (9A) is revised to read ``See 
A100''.

0
7. In Sec.  172.102, in paragraph (c)(1), Special Provision 134 and 157 
are revised and in paragraph (c)(2) Special Provisions A100, A101, 
A102, A103, and A104 are added to read as follows:


Sec.  172.102  Special provisions.

* * * * *
    (c) * * *
    (1) * * *
    Code/Special Provisions
* * * * *
    134 This entry only applies to vehicles, machinery and equipment 
powered by wet batteries, sodium batteries, or lithium batteries that 
are transported with these batteries installed. Examples of such items 
are electrically-powered cars, lawn mowers, wheelchairs, and other 
mobility aids. Self-propelled vehicles that also contain an internal 
combustion engine must be consigned under the entry ``Vehicle, 
flammable gas powered'' or ``Vehicle, flammable liquid powered'', as 
appropriate. Except as provided in Special Provision A102, vehicles, 
machinery and equipment powered by primary lithium batteries that are 
transported with these batteries installed are forbidden aboard 
passenger-carrying aircraft.
* * * * *
    157 This entry includes hybrid electric vehicles powered by both an 
internal combustion engine and wet, sodium or lithium batteries 
installed. Vehicles containing an internal combustion engine must be 
consigned under the entry ``Vehicle, flammable gas powered'' or 
``Vehicle, flammable liquid powered'', as appropriate. Except as 
provided in Special Provision A102, vehicles powered by primary lithium 
batteries, that are transported with these batteries installed are 
forbidden aboard passenger-carrying aircraft.
* * * * *
    (2) * * *
    A100 Primary (non-rechargeable) lithium batteries and cells are 
forbidden for transport aboard passenger carrying aircraft. Secondary 
(rechargeable) lithium batteries and cells are authorized aboard 
passenger carrying aircraft in packages that do not exceed a gross 
weight of 5 kg.
    A101 A primary (non-rechargeable) lithium battery or cell packed 
with equipment is forbidden for transport aboard a passenger carrying 
aircraft unless:
    a. The battery or cell complies with the requirements and 
limitations of Sec.  173.185(b)(1), (b)(2), (b)(3), (b)(4) and (b)(6) 
or Sec.  173.185(c)(1), (c)(2), (c)(3) and (c)(5) of this subchapter;
    b. The package contains no more than the number of lithium 
batteries or cells necessary to power the intended piece of equipment;
    c. The equipment and the battery or cell are packed in a strong 
packaging;
    d. The gross weight of the package does not exceed 5 kg. Packages 
complying with the requirements of this special provision are excepted 
from all other requirements of this subchapter.
    A102 A primary (non-rechargeable) lithium battery or cell contained 
in equipment is forbidden for transport aboard a passenger carrying 
aircraft unless:
    a. The battery or cell complies with the requirements and 
limitations of Sec.  173.185(b)(1), (b)(2), (b)(3), (b)(4) and (b)(6) 
or Sec.  173.185(c)(1), (c)(2), (c)(3) and (c)(5) of this subchapter;
    b. The package contains no more than the number of lithium 
batteries or cells

[[Page 75216]]

necessary to power the intended piece of equipment;
    c. The equipment containing the battery or cell is packed in strong 
packagings; and
    d. The net weight of the package does not exceed 5 kg. Packages 
complying with the requirements of this special provision are excepted 
from all other requirements of this subchapter.
    A103 A secondary (rechargeable) lithium battery or cell packed with 
equipment is authorized aboard passenger carrying aircraft in packages 
that do not exceed a gross weight of 5 kg.
    A104 A secondary (rechargeable) lithium battery or cell packed in 
equipment is authorized aboard passenger carrying aircraft in packages 
that do not exceed a net weight of 5 kg.
* * * * *

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND 
PACKAGINGS

0
8. The authority citation for part 173 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45, 1.53.

0
9. In Sec.  173.4, paragraph (d) is added to read as follows:


Sec.  173.4  Small quantity exceptions.

* * * * *
    (d) Lithium batteries and cells are not eligible for the exceptions 
provided in this section.
0
10. In Sec.  173.185, the introductory text of paragraph (b) is 
revised, paragraph (b)(5) is redesignated as paragraph (b)(6), and new 
paragraph (b)(5) is added; then the introductory text of paragraph (c) 
is revised, paragraph (c)(4) is redesignated as paragraph (c)(5), and 
new paragraph (c)(4) is added; and paragraph (d) is revised to read as 
follows:


Sec.  173.185  Lithium batteries and cells.

* * * * *
    (b) Exceptions. Except for primary (non-rechargeable) lithium 
batteries and cells transported aboard passenger-carrying aircraft, 
cells and batteries are not subject to any other requirements of this 
subchapter if they meet the following:
* * * * *
    (5) The outside of each package that contains a primary (non-
rechargeable) lithium battery or cell must be marked ``PRIMARY LITHIUM 
BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT'' on a 
background of contrasting color, in letters:
    (i) At least 12 mm (0.5 inch) in height on packages having a gross 
mass of more than 30 kg (66 pounds); or
    (ii) At least 6 mm (0.25 inch) on packages having a gross mass of 
30 kg (66 pounds) or less; and
* * * * *
    (c) Except for primary lithium (non-rechargeable) batteries and 
cells transported aboard passenger-carrying aircraft, cells and 
batteries are not subject to any other requirements of this subchapter 
if they meet the following:
* * * * *
    (4) The outside of each package that contains a primary (non-
rechargeable) lithium battery or cell must be marked ``PRIMARY LITHIUM 
BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT'' on a 
background of contrasting color, in letters:
    (i) At least 12 mm (0.5 inch) in height on packages having a gross 
mass of more than 30 kg (66 pounds); or
    (ii) At least 6 mm (0.25 inch) on packages having a gross mass of 
30 kg (66 pounds) or less; and
* * * * *
    (d) Except for transportation aboard passenger-carrying aircraft, 
cells and batteries and equipment containing cells and batteries that 
were first transported prior to January 1, 1995, and were assigned to 
Class 9 on the basis of the requirements of this subchapter in effect 
on October 1, 1993, may continue to be transported in accordance with 
the applicable requirements in effect on October 1, 1993.
* * * * *

0
11. In Sec.  173.220, paragraphs (d), (e) and (f) are redesignated as 
paragraphs (e), (f) and (g) and new paragraph (d) is added to read as 
follows:


Sec.  173.220  Internal combustion engines, self-propelled vehicles, 
mechanical equipment containing internal combustion engines, and 
battery powered vehicles and equipment.

* * * * *
    (d) Lithium batteries. Except as provided in Sec.  172.102, Special 
Provision A102, of this subchapter, vehicles and machinery powered by 
primary lithium batteries that are transported with these batteries 
installed are forbidden aboard passenger-carrying aircraft. Lithium 
batteries contained in vehicles or engines must be securely fastened in 
the battery holder of the vehicle or engine, and be protected in such a 
manner as to prevent damage and short circuits. Lithium batteries must 
be of a type that have successfully passed each test in the UN Manual 
of Tests and Criteria as specified in Sec.  173.185, unless approved by 
the Associate Administrator. Equipment, other than vehicles or engines, 
containing lithium batteries must be transported in accordance with 
Sec.  173.185.
* * * * *

PART 175--CARRIAGE BY AIRCRAFT

0
12. The authority citation for part 175 is revised to read as follows:

    Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.53.

0
13. In Sec.  175.10, paragraph (a)(27) is added to read as follows:


Sec.  175.10  Exceptions.

    (a) * * *
    (27) Except as provided in Sec.  173.21 of this subchapter, 
consumer electronic and medical devices (watches, calculators, cameras, 
cellular phones, lap-top computers, camcorders, and hearing aids, etc.) 
containing lithium cells or batteries, and spare lithium batteries and 
cells for these devices, when carried by passengers or crew members in 
carry-on or checked baggage for personal use. In addition, each 
installed or spare battery must conform to the following:
    (i) The lithium content of the anode of each cell, when fully 
charged, is not more than 5 g; and
    (ii) The aggregate lithium content of the anodes of each battery, 
when fully charged, is not more than 25 g.
* * * * *

    Issued in Washington, DC, on December 10, 2004 under authority 
delegated in 49 CFR Part 1.
Samuel G. Bonasso,
Deputy Administrator.
[FR Doc. 04-27423 Filed 12-10-04; 1:59 pm]
BILLING CODE 4910-60-P